EXHIBIT 99.2
SUPPLEMENTAL INDENTURE NO. 2, dated as of September 7, 2000 (the
"Supplemental Indenture"), between CABOT INDUSTRIAL PROPERTIES, L.P., a limited
partnership organized under the laws of the State of Delaware (herein called the
"Operating Partnership"), and THE BANK OF NEW YORK, a New York banking
corporation organized and existing under the laws of the State of New York, as
Trustee (herein called the "Trustee").
RECITALS OF THE OPERATING PARTNERSHIP
The Operating Partnership and Cabot Industrial Trust, a real estate
investment trust duly organized and existing under the laws of the State of
Maryland (herein called the "Company") have heretofore delivered to the Trustee
an Indenture, dated as of April 30, 1999, by and among the Operating
Partnership, Cabot Industrial Trust, as guarantor, and the Trustee, as
supplemented and amended by a Supplemental Indenture No. 1, dated as of May 4,
1999 (collectively, the "Original Indenture," and together with this
Supplemental Indenture, the "Indenture"), by and between the Operating
Partnership and the Trustee, which has been filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, as an exhibit to the Operating Partnership's Registration Statement on
Form S-3 (Registration No. 333-71585), providing for the issuance from time to
time of Debt Securities of the Operating Partnership (the "Securities"). The
Operating Partnership intends by this Supplemental Indenture to (i) create a
series of debt securities to be issued from time to time, in an aggregate
initial principal amount not to exceed $200,000,000, entitled "Series A Medium-
Term Notes Due Nine Months or More from Date of Issue" and (ii) establish the
form and the terms and conditions of such Notes (as hereinafter defined).
Section 301 of the Original Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Original Indenture.
Section 901(7) of the Original Indenture provides for the Operating
Partnership and the Trustee to enter into an indenture supplemental to the
Original Indenture to establish the form or terms of Securities of any series as
provided by Sections 201 and 301 of the Original Indenture.
The Board of Trustees of Cabot Industrial Trust, the general partner of the
Operating Partnership, has duly adopted resolutions authorizing the Operating
Partnership to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid and binding agreement in
accordance with its terms and for the purposes herein expressed, have been
performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of each of the
series of Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Notes or of any series thereof, as follows:
ARTICLE ONE
THE SERIES OF NOTES
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SECTION 1.1 Title of the Securities.
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There shall be a series of Securities designated the Series A Medium-Term
Notes Due Nine Months or More from Date of Issue (the "Notes").
SECTION 1.2 Limitation on Aggregate Principal Amount.
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The aggregate principal amount of the Notes shall be limited to
$200,000,000, and, except as provided in this Section and otherwise permitted by
the Original Indenture, the Operating Partnership shall not execute and the
Trustee shall not authenticate or deliver Notes in excess of such aggregate
principal amount; provided, however, as authorized or permitted by Section 301
of the Original Indenture, the Notes series may be reopened, without the consent
of the Holders, for the issuance of such additional Notes as may be authorized
by the Operating Partnership.
Nothing contained in this Section 1.2 or elsewhere in this Supplemental
Indenture, or in the Notes, is intended to or shall limit execution by the
Operating Partnership or authentication or delivery by the Trustee of Notes
under the circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107
and 1305 of the Original Indenture.
SECTION 1.3 Terms and Conditions of the Notes.
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The Notes shall be governed by all the terms and conditions of the Original
Indenture, including, without limitation, the terms and conditions set forth in
the forms of Note referred to in Section 1.6 below, as the same may be
supplemented or, to the extent allowed by the Original Indenture, modified by
the additional or different terms and conditions established from time to time
with respect to the Notes in board resolutions of the Company, as the sole
general partner of the Operating Partnership, or by action of authorized
officers of the Company and, in such case, such additional or different terms
and conditions shall be set forth in the Notes and the related pricing
supplement. In connection with any issuance of Notes, the board of trustees of
the Company may specify, by resolution, which, if any, of the covenants
contained in Section 1.7 of this Supplemental Indenture shall not apply to that
particular issuance of Notes. All such terms and conditions set forth in such
Notes and in such Pricing Supplement as it relates to the terms and conditions
of the Notes are incorporated by reference into this Supplemental Indenture.
SECTION 1.4 Discharge.
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The provisions of Section 1402 and 1403 of the Original Indenture, together
with the other provisions of Article Fourteen of the Original Indenture, shall
be applicable to the Notes. The provisions of Section 1403 of the Original
Indenture shall apply to the covenants set forth in Section 1.7 of this
Supplemental Indenture and to those covenants specified in Section 1403 of the
Original Indenture.
SECTION 1.5 Registered Securities.
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Each Note shall be issuable and transferable in fully registered book-entry
form or certificated form as specified in the applicable Pricing Supplement.
SECTION 1.6 Form of Notes.
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The Floating Rate Notes shall be substantially in the form attached as
Exhibit A hereto. The Fixed Rate Notes shall be substantially in the form
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attached as Exhibit B hereto.
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SECTION 1.7 Limitations of Incurrence of Indebtedness.
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(a) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness, other than Intercompany Indebtedness,
if, immediately after giving effect to the incurrence of such additional
Indebtedness and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Indebtedness of the Operating Partnership
and its Subsidiaries on a consolidated basis determined in accordance with GAAP
would be greater than 60% of the sum of (without duplication) (i) the Total
Assets of Operating Partnership and its Subsidiaries as of the end of the
calendar quarter covered in the Operating Partnership's Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the Commission (or, if such filing is not permitted under the Exchange Act,
then, subject to Section 703 of the Original Indenture, with the Trustee prior
to the incurrence of such additional Indebtedness and (ii) the purchase price of
any real estate assets or mortgage loans receivable acquired, and the amount of
any securities offering proceeds received (to the extent such proceeds were not
used to acquire real estate assets or mortgage loans receivable or used to
reduce Indebtedness), by the Operating Partnership or any of its Subsidiaries
since the end of such calendar quarter, including those proceeds obtained in
connection with the incurrence of such additional Indebtedness.
(b) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness if the ratio of Consolidated Income
Available for Debt Service to the Annual Debt Service Charge for the four
consecutive fiscal quarters most recently ended prior to the date on which such
additional Indebtedness is to be incurred shall have been less than 1.5:1 on a
pro forma basis after giving effect thereto and to the application of the
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proceeds therefrom and calculated on the assumption that (i) such Indebtedness
and any other Indebtedness incurred by the Operating Partnership and its
Subsidiaries since the first day of such four-quarter period and the application
of the proceeds therefrom, including to refinance other Indebtedness, has
occurred at the beginning of such period; (ii) the repayment or retirement of
any other Indebtedness by the Operating Partnership and its Subsidiaries since
the first day of such four-quarter period has been
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repaid or retired at the beginning of such period (except that, in making such
computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such period); (iii) in the case of Acquired Indebtedness or Indebtedness
incurred in connection with any acquisition since the first day of such four-
quarter period, the related acquisition had occurred as of the first day of such
period with the appropriate adjustments with respect to such acquisition being
included in such pro forma calculation; and (iv) in the case of any acquisition
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or disposition by the Operating Partnership or its Subsidiaries of any asset or
group of assets since the first day of such four-quarter period, whether by
merger, stock purchase of sale, or asset purchase or sale, such acquisition or
disposition or any related repayment of Indebtedness had occurred as of the
first day of such period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma calculation.
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(c) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness secured by any Encumbrance on or in any
of the property of the Operating Partnership or any of its Subsidiaries, whether
owned at the date of this Supplemental Indenture or thereafter acquired, if,
immediately after giving effect to the incurrence of such additional
Indebtedness and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Indebtedness of the Operating Partnership
and its Subsidiaries on a consolidated basis which is secured by any Encumbrance
on property of the Operating Partnership or any of its Subsidiaries would be
greater than 40% of the sum of (without duplication) (i) the Total Assets of the
Operating Partnership and its Subsidiaries as of the end of the calendar quarter
covered in the Operating Partnership's Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, most recently filed with the Commission
(or, if such filing is not permitted under the Exchange Act, then with the
Trustee prior to the incurrence of such additional Indebtedness and (ii) the
purchase price of any real estate assets or mortgage loans receivable acquired,
and the amount of any securities offering proceeds received (to the extent such
proceeds were not used to acquire real estate assets or mortgage loans
receivable or used to reduce Indebtedness), by the Operating Partnership or any
of its Subsidiaries since the end of such calendar quarter, including those
proceeds obtained in connection with the incurrence of such additional
Indebtedness.
(d) The Operating Partnership and its Subsidiaries must at all times have
Total Unencumbered Assets equal to 150% or more of the aggregate outstanding
principal amount of the Unsecured Indebtedness of the Operating Partnership and
its Subsidiaries on a consolidated basis.
(e) For purposes of this Section 1.7, Indebtedness shall be deemed to be
"incurred" by the Operating Partnership or a Subsidiary whenever the Operating
Partnership or such Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof.
SECTION 1.8 Waiver of Certain Covenants.
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Notwithstanding the provisions of Section 1011 of the Original Indenture,
the Operating Partnership may omit in any particular instance to comply with any
term, provision, or condition set forth in the Original Indenture and in this
Supplemental Indenture
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and with any other term, provision or condition with respect to the Notes
(except any such term, provision or condition which could not be amended without
the consent of all Holders of the Notes or such series thereof, as applicable),
if before or after the time for such compliance the Holders of at least a
majority in principal amount of all Outstanding Notes, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenants or condition. Except to the extent so expressly waived, and until
such waiver shall become effective, the obligations of the Operating Partnership
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 1.9 Guaranty by the Corporation.
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The Guarantee set forth in Article Sixteen of the Original Indenture shall
not be in effect with respect to the Notes.
ARTICLE TWO
MISCELLANEOUS PROVISIONS
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SECTION 2.1. Relation to Original Indenture.
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This Supplemental Indenture constitutes an integral part of the Original
Indenture.
SECTION 2.2. Ratification of Original Indenture.
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Except as expressly modified or amended hereby, the Original Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 2.3. Governing Law.
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This Supplemental Indenture and each Note shall be governed by and
construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 2.4 Definitions.
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For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Original Indenture; and
(2) all references herein to Articles and Sections unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture.
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SECTION 2.5. Counterparts.
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This Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 2.6 Certain Rights of Trustee
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Except as otherwise expressly provided herein, no duties, responsibilities
or liabilities are assumed, or shall be construed to be assumed, by the Trustee
by reason of this Supplemental Indenture. This Supplemental Indenture is
executed and accepted by the Trustee subject to all the terms and conditions set
forth in the Original Indenture with the same force and effect as if those terms
and conditions were repeated at length herein and made applicable to the Trustee
with respect hereto.
SECTION 2.7 Trustee Not Responsible.
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The Trustee shall not be responsible in any manner for or in respect of the
validity or sufficiency of this Supplemental Indenture or of the Notes. The
Trustee shall not be accountable for the use or application by the Operating
Partnership of the Notes or the proceeds thereof.
[End of Text]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 2 to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
CABOT INDUSTRIAL PROPERTIES, L.P.
By: Cabot Industrial Trust,
its general partner
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
